DRN-6186413

The complaint Mr S complained about how esure Insurance Limited handled claims under his motor insurance policy. What happened Mr S’s car was damaged after it skidded on ice in a car park and hit another vehicle. esure dealt with his claim and paid for his car’s repair, and the other vehicle’s claim. However they recorded it as a fault claim on Mr S’s insurance record. Mr S thought that his accident was the fault of the car park. Mr S said that esure’s decision to deem the claim his fault increased his premiums, adversely affected his no claims discount (NCD), and caused him other losses and inconvenience. He wanted esure to remove the fault claim from his record, restore his NCD, refund his policy excess and compensate him for his financial loss and inconvenience. He was also unhappy that esure hadn’t given him access to his legal expenses protection to recover his uninsured losses. He also complained that esure took too long to respond to his complaint, and esure acknowledged this and offered him £100 in compensation. However they considered they’d otherwise acted fairly. The investigator didn’t recommend that the complaint should be upheld. He thought that esure had acted reasonably under the policy. Mr S disagreed and so I’ve been asked to decide. What I’ve decided – and why I’ve considered all the available evidence and arguments to decide what’s fair and reasonable in the circumstances of this complaint. In his complaint and in response to our investigator's assessment of it, Mr S has made detailed submissions on the legal issues involved. I'm grateful for his time and effort in this and I've considered everything he’s said. But I don't intend to address each individual point raised or to define anything about the chain of ownership or liability affecting the car park, as that’s not our role. Mr S considers that liability rests with the management company acting for the freeholder, who he says is contractually and legally obliged under the lease to maintain the premises, including the car park. However I use the terms “car park manager ” or “car park” here interchangeably instead for ease of explanation. In setting out what I think is a fair and reasonable outcome for this complaint I’ve focused on the reasons that are central to my decision making. I’m satisfied that I don’t need to comment on every individual point to be able to reach what I think is the right outcome. This Service is an informal dispute resolution service that is an alternative to the courts and not a substitute for them. While we have regard to the law ultimately our role is to decide what is fair and reasonable based on all the evidence and the circumstances described. As the investigator explained, it’s not the role of this Service to decide who was at fault for any incident or accident. What we have to look at is how esure have reached their decision on liability and whether they’ve done so in a fair and reasonable way. Under Mr S’s policy,

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esure have the right to take over and settle a claim on his behalf. This is a common term in insurance policies, and we don’t think it’s unreasonable. So esure can settle a claim whether Mr S agrees with it or not. Insurers are entitled to make a commercial decision about whether it is reasonable for them to defend a claim in court or better for them to settle it. It’s not in dispute that in 2022 Mr S’s car was damaged after skidding on ice in a privately owned car park and hitting another vehicle. esure said they couldn’t recover their claim costs from any third party, so the claim remained a fault claim against Mr S, even though he wasn’t at fault. This is standard insurance practice, and we don’t think it is unreasonable as the insurer has incurred unrecoverable costs. However Mr S thought that esure should have pursued the car park for them. esure declined to pursue the car park. They said they were not liable because the presence of ice didn’t mean that they had been negligent, and it was an Act of God. In response to Mr S’s complaint, esure said that “After a thorough review, we must advise that we are unable to hold the car park operator liable for the damage caused. Under UK law, the mere presence of ice does not automatically constitute negligence. Car park owners are not required to eliminate all risks, particularly when weather conditions change suddenly.” Mr S said esure were wrong about this and that the car park manager was at fault because they had failed in their obligation to maintain the safety and usability of the car park. He said they should have been aware of its icy condition and done something to prevent that causing damage and the ice had built up over several days because of their failure in their contractual duty to grit or maintain it, or due to their negligence. He said that esure had mischaracterised the circumstances of his accident, suggesting the snow and ice was a sudden unexpected event which created a sudden hazard for which the car park manager couldn’t be held responsible, when instead the icy conditions created a longstanding, foreseeable risk of accident due to the car park manager’s failure to maintain the car park. So he said that his accident was a foreseeable risk that the car park manager should have prevented. He gave esure a summary of what he said were the car park manager’s contractual responsibilities under the car park lease. He also gave esure photographs and videos of the car park’s icy conditions and statements from two witnesses who said the ice had been there for days. I can see from esure’s files that they explained to Mr S consistently from outset that they did not intend to pursue the car park for their claim outlays. They explained that the mere fact that there was snow, and ice doesn’t mean that they must be responsible for Mr S’s accident. They decided that to pursue their costs was not cost effective. Mr S thought that esure’s assessment of the prospects of recovery from the car park was not reasonable. He didn’t disagree with the proposition that the law did not impose an automatic duty to grit in the presence of ice in winter and so it didn’t automatically mean the car park manager had breached its duty. He said esure didn’t have to be certain of success if they pursued the car park manager for their claim costs, all they had to consider whether recovery was reasonably likely. Mr S thought it was, because there was maintenance responsibility under the leases, and so it was wrong for esure not to take that element into account, and they’d failed to engage with that evidence and ruled out an arguable claim without meaningful investigation. However said that they were aware of the law and thought they had no reasonable prospect of successfully suing the car park manager for their outlays, even if esure they did have some maintenance responsibility. Court proceedings can be long and costly, and there is no guarantee of success. Insurers have experience of this and so we think it’s fair for insurers to

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decide if it is likely to be economic to sue - they’re not required to sue at any cost. Whether it is economic to accept the claim costs rather than sue for their recovery is a commercial decision, and Mr S’s policy allows them to make a commercial decision, and we don’t think that unfair. I think esure did exercise their discretion reasonably when deciding not to pursue the car park for recovery. I think that esure did handle the claim fairly. They listened to Mr S and I see from their file that they did explain their decision and their rationale and the effect on his NCD and premiums. Mr S said esure denied him legal assistance to pursue the car park. But I see from their files that they did make him aware that he had motor legal protection insurance for his uninsured losses, but they explained as above why they would not pursue that, and I think they acted fairly there. Mr S also complained that esure hadn’t issued a timely final decision on his complaint. esure accepted that and offered him £100 compensation. I think that does fairly reflect the inconvenience caused by the delay and esure should pay it if they haven’t already. I can see that Mr S has found this situation frustrating and feels that esure didn’t defend his interests properly, because he has a fault record on his insurance for something that he feels happened through no fault of his own. However I have to look at whether esure have acted reasonably and in line with their policy. I think that they did, and so I don’t require them to do any more. My final decision For the reasons I’ve given above it’s my final decision that I don’t uphold this complaint. Under the rules of the Financial Ombudsman Service, I’m required to ask Mr S to accept or reject my decision before 22 May 2026. Rosslyn Scott Ombudsman

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